"(2) IT IS FURTHER ORDERED that the
psychiatrist or licensed psychologist advise the Defendant that he is
conducting the examination for and on behalf of the State of Oregon; that he is
not examining Defendant for purposes of treatment and that the Defendant need
not answer any questions concerning his acts or conduct at or immediately near
the time of the commission of the offense.� 'At or immediately near the time of
the commission of the offense' includes any acts or conduct bearing a proximate
connection to the crime charged or of any other crime which acts or conduct
could in any way tend to incriminate the Defendant; by incrimination is meant
any statement concerning any acts or conduct which involve him in the crime
charged or any other crime;�

"(3) IT IS FURTHER ORDERED that the
psychiatrist or licensed psychologist is allowed to inquire about the Defendant's
thoughts at or immediately near the time of the commission of the offense;

"(4) IT IS FURTHER ORDERED that the
Defendant is to answer all questions asked of him by the psychiatrist or
licensed psychologist and/or perform any tests given in the course of the usual
examination except as heretofore limited by specification (2)[.]"

The order also provides in the final paragraph (8) that relator's
failure to act in accordance with the provisions of the order will -- "in
addition to any other sanctions" that the trial court might wish to impose
-- preclude relator from introducing expert testimony at trial regarding his mental
state.

Relator subsequently moved the trial
court to modify its order to prohibit the state's expert from asking questions
directed at relator's "thoughts, acts, or conduct" at or near the
time of the crime.� The trial court denied that motion.� As noted, relator then
petitioned this court for a writ of mandamus directing the trial court to
modify its order in the manner just described.� We stayed the state's scheduled
mental examination and issued an alternative writ of mandamus commanding the
trial court to amend its order as relator had requested or show cause for not
doing so.� The trial court declined to amend the order and relator now
petitions this court for a peremptory writ of mandamus directing the order's
modification.

In
doing so, relator argues that the relief he seeks is mandated by the rule
articulated in a line of cases commencing with Shepard v. Bowe, 250 Or
288, 442 P2d 238 (1968), discussed post.� In response, the state
contends that, for purposes of the mental examination that relator faces here, nothing
prohibits the state from questioning relator concerning his thoughts at or near
the time of the crime because relator has made an affirmative decision to support
his proposed defenses through the testimony of his own mental health expert. ��The
state argues that, as a result of that voluntary choice, relator's subsequent
participation in any state-conducted mental examination cannot be viewed as "compelled"
because relator has, in essence, waived his Article I, section 12, right to
remain silent during that examination.� To better understand those arguments,
we begin by briefly examining the context provided by our past decisions
concerning mental examinations like the one at issue here.

"'The constitutional privilege against self-incrimination
in history and principle seems to relate to protecting the accused from the
process of extracting from his own lips against his will an admission of guilt,
and in better reasoned cases it does not extend to the exclusion of his body or
of his mental condition as evidence when such evidence is relevant and
material, even when such evidence is obtained by compulsion.'"�

Shepard
v. Bowe followed in 1968.� In that case, the court addressed the questions
of whether a trial court has

"the authority to require that the defendant, at a
pretrial mental examination, answer questions concerning his conduct relating
to the offense charged, and can the court order defendant's counsel not to
advise his client to refuse to answer questions upon the ground that they might
incriminate him?"

250
Or at 290.� The defendant in Shepard had pleaded not guilty by reason of
insanity to the criminal charges against him and the state had secured a court
order requiring the defendant to undergo a state-conducted pretrial mental
examination.� Among other things, the examination order:� (1) expressly
required the defendant to answer any question put to him regarding his conduct
at or near the time of the alleged crime; and (2) prohibited the defendant's
lawyer from advising his client not to answer questions that might tend to
incriminate him.� On the defendant's petition for mandamus relief that
followed, this court first noted that the responses required by the trial court's
order "might be incriminating upon any of the issues in the trial, including
the issue whether the relator committed the act charged."� Id. (footnote
omitted).� After examining how other jurisdictions had dealt with the
possibility of compelled self-incrimination in similar situations, the court vacated
the examination order, stating:

"We conclude that the only way in which the
constitutional right of the defendant not to be compelled to testify against
himself can be adequately preserved is to hold that the defendant cannot be
required to answer the questions which the trial court's order requires him to
answer, and the restrictions placed upon defense counsel by the trial court's
order must be removed.

"* * * * *

"We are aware that in holding that the
defendant cannot be compelled to answer the psychiatrist's questions we may be
lessening the quality of the evidence available to the state.� Psychiatrists
have expressed the opinion that it is difficult, at least in some cases, to
arrive at a competent opinion on the mental state of the defendant if the
defendant cannot be questioned about the alleged crime.� We are of the opinion
that this is a price that must be paid to enforce the constitutional
protection."

Id.
at 293-94 (internal citations omitted).

Our
discussion in Shepard focused narrowly on the conduct-related evidence
that the defendant would have been forced to provide as a result of the trial
court's order.� Consequently, Shepard's primary holding -- that the
trial court could not force the defendant to discuss his conduct at or
near the time of the crime -- should not be read as the definitive exposition
of all the topics that could, if broached in a state-conducted mental
examination, potentially violate a defendant's privilege against
self-incrimination.� Had that been the case, there would have been no need for further
holding that, contrary to the trial court's order, the defendant's lawyer could,
indeed, advise his client against answering other questions in the course of
that examination.� Here, however, we are faced with an order that poses a
different question:� In giving notice of the intent to rely on a mental defense,
do criminal defendants constructively waive their privilege against
self-incrimination such that they can be forced -- during a pretrial court-ordered
mental examination -- to discuss the thoughts they had at or near the
time of an alleged offense?� We turn now to that inquiry.���

Both
the United States and the Oregon constitutions recognize an individual's right
against compelled self-incrimination.� Here, relator relies on Article I, section
12, of the Oregon Constitution as the source of that right.� That
constitutional provision states, in relevant part:

In
State ex rel Johnson v. Woodrich, 279 Or 31, 566 P2d 859 (1977), this
court recognized that pretrial mental examinations must be conducted consistently
with the privilege against self-incrimination.� In Woodrich, the
defendant had notified the state of his intent to rely on extreme emotional
disturbance and mental disease or defect as defenses in his upcoming murder
trial.� The state subsequently petitioned this court for a writ of mandamus,
calling on the court to reconsider Shepard and order an unlimited mental
examination of the defendant.� In denying the state's request, the court affirmed
the primacy of an accused's right to be free from compelled self-incrimination during
state conducted mental examinations like the one at issue in Shepard.� After
noting that the statutory authority for such examinations was a codification of
this court's holding in Phillips, a plurality of the court opined:

"It was
neither our intent nor that of the legislature to attempt to undercut the
constitutional privilege against self-incrimination.� It was our intent to make
the best use of modern psychiatric expertise consistent with the privilege
as we understand it."

Id.
at 35 (emphasis added; footnote omitted).� In Woodrich, however, one
member of the court, specially concurring in that decision, observed:

"The state has made a person's mental
condition a crucial factor in the existence or extent of his culpability.� If,
as I assume, he could not be compelled to answer questions about his state of
mind in court, he equally cannot be compelled to answer them out of court.� His
statements to the state's examiner about that mental condition may become the
basis of testimony against him on that crucial factor in a criminal trial.� No
one can be compelled to give the prosecution statements that may be used
against himself, even if this makes it more difficult for the prosecution to
contradict evidence in his favor.� The United States Supreme Court has recently
reiterated its consistent rejection of arguments that one may be compelled to
incriminate oneself when this is required by a governmental need.� See
Lefkowitz v. Cunningham, 431 US 801, 808, 97 S Ct 2132, 53 L Ed 2d 1
(1977), and cases there cited.

"* * * * *

"It may well be that the state of a man's
mind is as much a fact as the state of his digestion, but an accused could not,
consistent with the privilege, be made to testify about his digestion.� When
the issue is what fed a defendant's mind or emotions, perhaps a distinction can
be found between generalized psychometric and diagnostic tests that could be
considered analogous to physical examinations, to which the accused can be
ordered to submit, and more individualized inquiries designed to elicit the
accused's own testimony as to thoughts, memories, feelings, or fantasies bearing
on that issue, which would be subject to his privilege not to answer.� Perhaps
such a distinction would upon scrutiny prove illusory.� In any event, a line
between 'testimonial' and 'non-testimonial' mental examination of an accused
excludes more than the questions about his conduct relating to the alleged
offenses that are excluded under Shepard v. Bowe.� How much more must
await a future case."

279
Or at 39-41 (footnote omitted) (Linde, J., specially concurring).

Those
observations are instructive today.� Here, the trial court's order makes clear that
the pretrial examination that relator is scheduled to undergo will be conducted
"for and on behalf of the State of Oregon" and not for relator's
treatment.� The order authorizes the state's mental health expert to question relator
concerning his thoughts at or near the time of the alleged crime and requires that
relator answer those questions, or face the prospect that he will be prohibited
at trial from introducing expert testimony regarding his mental state at the
time of the crime.� To reiterate the point made by the special concurrence in Woodrich,
under those circumstances, relator's ruminations

"may become the basis of testimony against him on that
crucial factor in a criminal trial.� No one can be compelled to give the
prosecution statements that may be used against himself, even if this makes it
more difficult for the prosecution to contradict evidence in his favor."�

Id.
at 39.� We agree.

The
state, however, cites State v. Mende, 304 Or 18, 741 P2d 496 (1987), for
the proposition that the principles of waiver upon which that case was decided
are also controlling here.� In Mende, the defendant had moved to dismiss
the criminal charges against him, arguing that he had been denied a speedy trial
and that his defense had been prejudiced as a result. �In support of his
motion, the defendant had submitted an affidavit to the trial court asserting a
specific allegation of prejudice.� However, at the ensuing hearing, the defendant,
asserting his constitutional privilege against self-incrimination, �refused to
be cross-examined by the state on the matters that he had asserted in the
affidavit.� In response, the trial court struck the allegations of prejudice from
the defendant's affidavit.� On review, this court upheld the trial court's
ruling, concluding that "[b]y submitting the affidavit, [the defendant]
waived his privilege not to testify concerning the matters asserted in his
affidavit at the hearing on his motion to dismiss."� Id. at 21.�

Drawing
on Mende, the state now argues:

"By choosing to invoke statutory defenses related to
his mental state, defendant has chosen to place his mental state in issue.� By
seeking to introduce expert testimony to support his statutory defenses,
defendant has voluntarily accepted the conditions that the legislature has
placed on the use of such evidence.� In that sense, even though required by
statute, defendant's answers to the state's questions about his mental state
are not 'compelled.'"

Those
arguments are problematic for a number of reasons.� First, in every trial
concerning an allegation of criminal conduct, a defendant's mens rea is potentially
at issue, whether the defendant has raised an affirmative defense, or not.� In
fact, for purposes of the Oregon Criminal Code, conduct and mental state are
virtually inseparable:

"'Conduct' means an act or omission and
its accompanying mental state."

ORS
161.085(3) (emphasis added).� Here, relator's decision to raise statutory
defenses to the charge against him has not altered the state's burden to prove
the existence of a culpable mental state beyond a reasonable doubt, nor has it
otherwise altered relator's rights under Article I, section 12.�

Second,
it is not the conditions imposed by the legislature that are problematic in
this case.� Rather, it is the conditions imposed by the trial court's order.� Relator
has been ordered to undergo a pretrial mental examination conducted by the
state.� With the exception of questions concerning his conduct and actions at
the time of the crime, the order requires relator to answer all questions asked
of him during that examination without regard for how potentially incriminating
his answers may be in connection with the murder charge he now faces or, for
that matter, any other uncharged crime that he may have committed.� Relator's failure
to abide by the terms of the order will not only cause relator to forfeit his
affirmative defenses, but it will also expressly subject relator to "other
sanctions," such as contempt.� We have recognized such orders as residing
among "obvious examples" of compulsion for purposes of Article I, section
12.� See State v. Fish, 321 Or 48, 57, 893 P2d 1023 (1995) (so stating).

Third,
Mende has no practical application at the pretrial stage of a criminal proceeding.�
Mende dealt with the state's right to cross-examine a defendant who, by
tendering an affidavit to the court, had effectively offered his direct
testimony into evidence at a hearing.� The issues here, in contrast, have
arisen during the discovery stage of the criminal proceedings against relator; relator
has not taken an oath, nor offered his own testimony into evidence, either in
person or by affidavit.�

Based on the foregoing analysis, we
conclude that the trial court's order must be modified.� However, we reject relator's
contention that the order must prohibit the state's mental health expert from
asking questions regarding relator's "thoughts, acts, or conduct at or
immediately near the time of the commission of the offense."� In our view,
the state's mental health expert must be permitted to attempt a full
examination.� That said, however, the authority to question relator in
conjunction with that examination does not necessarily oblige relator to give
an answer in every case.� Instead, the order must be modified to reflect that relator
may invoke, without sanction, his right against self-incrimination as to any
question asked of him by the state's expert during the state's pretrial mental
examination.

Peremptory writ to issue directing
the trial court to modify its order consistent with this opinion.

"Evidence
that the actor suffered from a mental disease or defect is admissible whenever
it is relevant to the issue of whether the actor did or did not have the intent
which is an element of the crime."�

4.ORS
161.315 and ORS 163.135 each authorize the state to conduct a mental
examination of a criminal defendant after the defendant tenders notice of his
or her intent to rely on certain defenses at trial.� ORS 161.315 applies to the
diminished capacity or partial responsibility defense.� That statute provides,
in part:

"Upon filing of notice or the introduction
of evidence by the defendant as provided in ORS 161.309(3), the state shall
have the right to have at least one psychiatrist or licensed psychologist of
its selection examine the defendant."�

ORS 163.135(5), in turn, applies to the affirmative defense
of extreme emotional disturbance.� It provides:

"After the defendant files notice as
provided in this section, the state may have at least one psychiatrist or licensed
psychologist of its selection examine the defendant in the same manner and
subject to the same provisions as provided in ORS 161.315."

6.That
part of the order suffers from another problem in that it announces the judge's
choice of sanctions before there has been any arguable violation of the order.�
That choice -- assuming it is ever necessary to make -- is a discretionary
one.� The order should not announce, before the fact, how that discretion will
be applied.

"when a witness refuses to submit to any
cross-examination or to answer cross-examination questions necessary to test
the witness's direct testimony, that refusal undermines the trier of fact's
ability to rely on the witness's direct testimony.� In those circumstances, the
courts generally have recognized that a trial court may strike the witness's
testimony."�